DOI: 10.19195/2084-5065.45.4
Handwriting examinations in Poland
M
arekL
eśniakDepartment of Criminalistics Faculty of Law and Administration
University of Silesia, Poland
Introduction
Professional handwriting examinations in Poland enjoy a 100-year-long tradition. But the text is about situation of such examinations cur-rently. The present author’s purpose is to depict the scientific condition of handwriting examinations and the position taken in practice. The hand-writing expert’s opinion is the most often treated as the part of docu-ment examination1. Within handwriting examination the specialist
lit-erature distinguishes three different scopes of examination: identification comparative examinations, examinations relating to pathology of hand-writing, examination relating to psychology of handwriting. It is possible to encounter with all kinds of examination in Polish court. Therefore the present disquisition should take all mentioned scope into considerations
1 Kryminalistyka, ed. J. Widacki, C.H. Beck, Warszawa 2012, pp. 225–300; M. Goc,
Współczesny model ekspertyzy pismoznawczej, Wolumina.pl, Warszawa-Szczecin 2015, pp. 38–46; M. Goc, A, Łuszczuk, E. Oleksiewicz, “Dokument jako ślad kryminalistycz-ny”, [in:] Ślady kryminalistyczne. Ujawnianie, zabezpieczenie, wykorzystanie, ed. M. Goc, J. Moszczyński, Difin, Warszawa 2007, pp. 251–252; E. Gruza, M. Goc, J. Moszczyński, Kryminalistyka — czyli rzecz o metodach śledczych, Wydawnictwa Akademickie i Profes-jonalne, Warszawa 2008, pp. 360–410.
As the result of the semiotic and praxeological analysis, as well as through the interpretation of the legal registrations, mainly concerning so called “evidence law”, the set of elements have been established, from the value of which depends the evidential value of particular opinion based on handwriting knowledge, commissioned by judicial bodies for particu-lar criminal, civil and administrative case2. Into that set of elements have
been included: the property of the written assignment, legal admissibil-ity of the methods used by handwriting experts, approximation of the main judicial proceedings fact and the fact which is concerned by the ex-pert witness’ opinion, identification value of the methods used by the expert, the property of the methods used by the expert witness, including identification value of the methods, psychological pre-orientation of ju-dicial bodies in regard to the opinion based on handwriting knowledge and the competence of the handwriting expert. The mentioned elements will be used during the presentation of issues concerning professional handwriting examinations in Poland.
It is impossible for the present text to mention all significant Polish researches who dealt with handwriting and to list all their publications from the scope. As mentioned above the text has not come into being with the aim of providing with the list. The interested may refer to Polish
Criminalistics Bibliography which subsequent parts are issued by The
Forensic Association of Poland.
Features of handwriting analysis
The variety of factors affecting the range of changeability of graphic realisation performed by a particular person at a particular time and the enormous number of features which concur to the description of the par-ticular written assignment has been noticed. Those properties cause that the study concerning the frequency of the certain changeability range occurrence (the natural one as well as the one created through the inten-tion attempts of the manuscript’s author) is not very advanced. The future for sure belongs to further research in this area to be conducted on large population, using features during measuring and also calculations
con-2 M. Leśniak, Wartość dowodowa opinii pismoznawczej, B.S. Training, Pińczów
cerning their value made by adequate computer programs. This change-ability, however, complicates the study on the accuracy of particular methods based on handwriting science. It is still not possible to conduct a statistical calculation of the probable repetition of a particular config-uration of the writing feature value in Polish population. As a result, the level of conviction about the genuineness included in conclusion of the expert’s decisions is based mainly on subjective possibility (psycholo- gical). It was emphasized that in empiric studies there are no methods which would give 100% adequate settlement and any other settlement based on handwriting science also cannot give such certainty. It appeals only to psychological probability as it is mentioned in the text below.
Significance for judicial proceedings
Circumstances arising according to the expert witness may pertain to the main fact that occurs in the criminal, civil or administrative case or to the peripheral fact. The expert’s establishments concerning hand-writing identification usually relate to the main fact. Comparative experts’ opinion in some cases may, however, refer to the peripheral fact. The ar-rangements concerning the pathology and psychology of handwriting (if such knowledge is not used “assistantly” [auxiliary?] in the identification study) and the arrangements concerning handwriting psychology refer to the peripheral fact. If anything concerns expert’s examination of written expressions of intention (mostly testaments), in Polish civil cases it is not legal admissible to replace a psychiatrist’s opinion or a psychologist’s opinion with a handwriting expert’s opinion form the scope of pathology. Expert’s opinion relating to psychology of handwriting may be used in order to create a psychological profile (to determine the male/female sex too) of a writer in case of an anonymous letter.
Describing conception of the value of the expert’s opinion is not possible without referring to a specific theory of proving in court. It may be based on the inductive concept of court reasoning and proving, re-garding also the probabilistic nature of all actual decisions made while conducting a case based on enactment3.
3 J. Konieczny, “Indukcjonistyczne ujęcie dowodu sądowego w procesie karnym”,
In criminal cases the need for using handwriting comparative expert’s opinion may be connected with every offences, when a questioned hand-writing appears as a piece of evidence within it. But in the Polish Penal Code (act of 6 June 1997) there is an offence in case of which it is prac-tically impossible for criminal court to sentence a particular defendant without basing on a professional document expert’s opinion. It is a very often used a handwriting comparative opinion. According to article 270 § 1. “Whoever, with the purpose of using it as authentic, forges, or counterfeits or alters a document or uses such a document as authen-tic shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for a term of between 3 months to 5 years. § 2. The same punishment shall be imposed on anyone, who fills in a form bearing someone else’s signature, contrary to the will of the signatory and to his detriment or indeed uses such a document”. It is worthy of remark that Polish legislator uses the notion “document” in very wide meaning4. According to the content of article 115 § 14
“docu-ment” may be any object with which specific right is linked or which in connection with its content may constitutes a proof of law, a legal relation or a circumstance of legal significance. In 2015 Polish courts sentenced 5975 defendants who was accused of forging documents5. 2735 of them
were imprisoned (but only 216 without suspending the sentence). There-fore results of handwriting expert’s opinions are of significant import-ance for judicial proceedings.
The issue of scientific character of handwriting
expert’ opinions
In Polish specialist literature for about 20 years has been discuss-ing the issue of scientific character of methods used by handwritdiscuss-ing ex-perts. Up until the time the thesis on scientific character of this kind of
ed. J. Konieczny, Uniwersytet Śląski, Katowice 2012, pp. 27–29; T. Widła, Ocena do-wodu z opinii biegłego, Uniwersytet Śląski, Katowice 1992, pp. 97–107; M. Leśniak, op. cit., pp. 20–27.
4 R. Cieśla, Technical Examination of Documents, Wydawnictwo Uniwersytetu
Wrocławskiego, Wrocław 2006, pp. 37–39.
5 http://statystyka.policja.pl/st/kodeks-karny/przestepstwa-przeciwko-15/63643,
examination was not disputed one6. Polish scientists were examining a
debate about it that was being developed in American courts7. They took
into consideration the Daubert test (the first principles scientific collec-tion), that had changed criteria for the admissibility of scientific evidence in American courts. Using this expert evidence filter part of American judges stop treating handwriting experts’ opinion as a scientific evidence. It should be emphasized that the Daubert test may be the lodestar in non-American courts but it is specific to non-American legal system. That’s the reason why the present text chooses the highly advanced J. Konieczny’s modification8. Individual study method based on handwriting knowledge
in various scales deserves to be put in a category of “scientific” methods — some part of them does not deserve to be put in that category at all. However, taking into consideration the fact that “scientific” is a gradable, multivalent feature (not dichotomous) and is connected with the level of standardization of methodology (at procedure of which the result of the empiric study is used) and also the knowledge of its accuracy and reliability, some part of identification study methods of handwriting as well as concerning handwriting pathology and psychology is “scientific”. Together with their more precise standardization (of course, very import-ant for judges should be an answer to what extent are the standards based on empirical findings) and deeper research of the size of uncertainty area their level of “scientific part” for sure may be much higher.
Current legal rules does not contain regulations, which judicial bod-ies would be able to use during making actual arrangements on the opin-ions based on handwriting knowledge. The above statement concerns all
6 A. Feluś, “O tzw. nienaukowości ekspertyzy pisma ręcznego”, [in:] Materiały XI
Wrocławskiego Sympozjum Badania pisma, ed. Z. Kegel, Uniwersytet Wrocławski, Wro-cław, 2006, pp. 63–70.
7 See among other things: T. Tomaszewski, “Badania pismoznawcze w Stanach
Zjednoczonych: rzemiosło czy nauka”, [in:] Wpływ badań eksperymentalnych na war-tość dowodową ekspertyzy dokumentów, ed. Z. Kegel, Uniwersytet Wrocławski, Wrocław 2008, pp. 399–408; P. Gidrwoyń, “Rzemiosło czy nauka: sprawy U.S. v. Prime, U.S. v. Saelee, U.S. v. Rutherford”, [in:] Wpływ badań eksperymentalnych…, pp. 117–128; J. Wójcikiewicz, Dowód naukowy w procesie sądowym, Wydawnictwo Instytutu Eksper-tyz Sądowych, Kraków 2000, p. 22.
8 J. Konieczny, “Polygraph examination as scientific evidence”, European
the kinds of identification arrangements; it means that together with the arrangements based on handwriting science, the evidence in a particular criminal, civil or administrative case may occur also an arrangements concerning handwriting pathology or psychology.
In Polish literature regarding the subject matter, there is only little information about the study results concerning the accuracy of the indi-vidual handwriting scientific methods. In order to conduct a meta-analy-sis of the empiric results of the report we should inquire from literature concerning the subject matter, providing for the distinctness of the used study procedures. Generally, it has been established that the accuracy of the currently used methods concerning handwriting identification study is actually above 80%. The margin of error of the graphically-comparative method used in Poland, in the relation to Polish population, is about 10% — diagnostic value of the method, however, has been analysed only in one Polish empiric study. It is very mysterious issue, that there is only one empirical study of the handwriting identification method accurate while so many people are sentenced owing to the handwriting expert’s opinion. The research was made by J. Widacki in 19769. He arranged situation that
participants of the experiments took a paper package from door-keeper’s room. Then experienced experts used different identification method to match part of participants who had left their traces. The polygraph exam-ination accuracy was compared to: the handwriting examexam-ination accur-acy, the accuracy of recognizing by an eyewitness (doorkeepers) and the dactyloscopy examination accuracy. The handwriting examination accur-acy reached about 90 percentage.
In the case of methodology concerning pathology and psychology of handwri-ting, excluding the method of establishing the sex of the manuscript writer T. Widły, in Poland we do not use expanded methodologies of this kind, which are mainly described in German and French literature. There is simple lack of Polish empiric literature concerning the accuracy of such method. The accuracy of T. Widła’s me-thod reaches 80 percentage10. The method is highly standardized and the standards based on empirical researches.
9 J. Widacki, Wartość diagnostyczna badania poligraficznego i znaczenie
krymina-listyczne, Uniwersytet Jagielloński, Kraków 1976.
Forms of expert’s conclusion used in Poland
Experts formulate conclusion as: categorical, probable and inconclu-sive11. Probable conclusions often are graded (probable, highly probable,
very highly probable). An expert’s evaluation of probability of a specific finding is subjective. It relates to the expert’s experience only. There are few empiric findings about the likelihood of a specific set of handwriting characteristics values repeating in Polish population. Of course, too large factors influencing on handwriting may cause it impossible. But such data should be collected with the frequency with which sets of character-istics occur in the Polish and other populations. One should agree with assertion that research on frequency of features develops the discipline12
and gives scientific background for handwriting examination.
The vast majority of Polish researches and experts based on the axiom that handwriting is individual13. It is not scientific because it is not
possible empirically to put such thesis under falsification. It is possible that a specific handwriting is individual one. But is it possible to find it on the level of characteristics that an expert may evaluate at present? Many scientists are afraid of consequences connected with rejecting of the axiom. Polish prosecutors and judges expect categorical conclusions. During studying and a legal apprenticeship they were not preparing for using expert’s non-categorical conclusions. There are researches who make a demand for rejection of “error of individualization” and expert’s categorical conclusion14. According to the third, moderate position,
ex-perts may formulate the conclusion as categorical one but they should express it verbally as relating to only psychologically understanding of “certainty”15. Experts should use such phrases as: “I think that…”,
11 M. Goc, “Poziom kategoryczności wniosków końcowych w opiniach
pismo-znawczych”, Problemy Kryminalistyki 2011, 272, pp. 56–65.
12 M.J. Sachs, J.K. Koehler, “The coming paradigm shift in forensic identification
science”, Nature 2005, vol. 309, pp. 892–895.
13 See for example: M. Kała, D. Wilk, J. Wójcikiewicz, Ekspertyza sądowa, Wolter
Kluwer, Warszawa 2017, pp. 554–555; A. Feluś, “Indywidualność pisma a pomyłki bie-głego”, Problemy Kryminalistyki 1985, 168, pp. 216–221.
14 J. Konieczny, “Kryzys czy zmiana paradygmatu kryminalistyki”, Państwo i
Pra-wo 2012(1), pp. 10–15.
“I claim that…”. The present author asserts that it is important to separ-ate scientific and non-scientific issues. Scientific elements of professional experts are prone to a quality check. It may concern a measurement or an estimate of handwriting characteristics values or treat them as either similarities or dissimilarities. It is transparent to determine that a range of changeability of comparative writings characteristics includes questioned writing characteristics values. Transitions from such findings to categor-ical conclusions about writing the specific handwriting by an individual lose their transparency. It is based mainly on an expert’s experience. The trial decision-makers should be aware of that fact. They (mostly judges) should get clear information what parts of the expert’s opinion are based on empirical generalizations and what part of it is based only on different kinds of generalizations.
Qualifications of judicial decision-makers to evaluate
handwriting experts’ opinions
The adequate assessment of the evidence value of handwriting sci-ence-based opinion demands an adequate knowledge and abilities of the trial decision-maker who makes an assessment. Within the assessment procedures and making decisions concerning the value of the prolonged opinion, judicial bodies should know which elements of the opinion they should pay attention to. In Poland the current way of educating judges and prosecutors does not give us any chance to gain adequate qualifica-tions in this area. The symptom of it is not showing interest in the accur-acy of methods used by the expert. How is it possible to make an assess-ment of a specific expert opinion without information about the accuracy of the expert method? During the education judges are trained to ask forensic experts appropriate questions in a trial decision about admitting a handwriting expert’s opinion in evidence. But they are not prepared to assess submitted opinion. It is displayed in helplessness concerning confrontations of expert’s witnesses. It very often occurs that judges are looking for another expert in such situations. Then such a decision-maker may be driven by numbers of opinions (instead of by strength of experts’ arguments).
It is possible to distinguish three stages of assessments of an expert’s opinion: the stage of a priori assessment, the stage of a individual a
pos-teriori assessmentand the stage of final a posteriori assessment16. The
first stage includes making assessment that ascertains a particular issue which requires the possession of special knowledge. According to Polish criminal proceedings (article 193 § 1 of the Code of Criminal Procedure; act of 6 June 1997) appearing two premises (the matter requires the spe-cial knowledge and it is significantly important for the case) obliges the decision-maker to turn to an expert. There are no other possibilities to explain the fact. An interesting thing is that the Polish Code of Civil Pro-cedure gives possibilities to the judge to examine handwritings (article 254 § 1 of the Code of Civil Procedure) without experts. The regulation is a relic of a bygone age (the situation from over 100 hundreds years) when judges’ knowledge was comparable to an expert’s knowledge. The first stage of assessments includes also: the issue of choosing an expert or an institution, the form of an expert’s opinion (written or unwritten one), a date for its submission. According to the article 200 § 2 of the Pol-ish Code of Criminal Procedure every expert’s opinion should be supply among other things with substantiation (“a report on activities and find-ings and conclusions drawn from them”). The second stage includes the assessments of a particular expert opinion but concerns nothing but the opinion. The opinion is checked paying special attention to its complete-ness and intelligibility. The expert is not a “judge of fact”. Every opin-ion is subjected to judges’ free assessment of evidence. Judges are “a supreme expert witness” in Poland. If a court doesn’t acknowledge an expert opinion it should demand the expert submit another opinion or it should put the same questions to another expert. Such legal construct must demand that judges are prepared for controlling of expert’s evi-dence17. In practice such control is not possible because judges have not
an appropriate knowledge of first principles concerning forensic experts’ methods. For that reason judges sentenced people basing on poor quality experts’ opinion. The third stage is connected with an expert opinion
as-16 T. Widła, Ocena dowodu…, pp. 108–111.
17 J. Dziewanowska, J. Studzińska, “Assessment of export evidence in Polish Court
proceedings in comparison to other European countries”, Problems of Forensic Sciences, 2016, vol. 106, p. 463.
sessment in the context of other pieces of evidence. The courts decision-makers often become helpless in face of a contradiction between expert’s opinions.
Therefore prosecutors and judges are trained quite well to make an assessment in the initial stage. Lack of knowledge concerns second and third stages of making an experts’ opinions assessment.
Qualifications of handwriting experts.
Management of quality
The qualifications of the handwriting experts should have already been verified in a proper way before listing them onto the experts’ list provided by the administration of justice. In this area there is also lack of standardized rules, and the observation of the usage shows that very often happens that judges gain information from people who has nei-ther adequate knowledge nor abilities. In Poland nei-there is also lack of competency tests, which should be available for every person conducting the expert’s report. Judicial bodies should head such tests’ results while choosing the expert’s witness to a particular case.
In Poland until 1989 it was very difficult to become an expert in a court. There were two ways of reaching it — through forensic laborator-ies of police forces or forensic departments at universitlaborator-ies. Then it went from one extreme to the other. At present there are a lot of private schools that offer postgraduate courses in document examination. It happens very often that such courses are not carried out by document (handwriting) experts18. Their participants apply for putting them on lists of experts
administrated by the president of regional courts. The ordinance of the Minister of Justice of 24 January 2005 on court experts requires pos-sessing theoretical and practical special knowledge in a given discipline from candidates to the list. Possessing the knowledge is verified only by means of documents — course certificates too. As a result of such
prac-18 M. Leśniak, S. Ławrentjew, “Przesłanki wpisu na listę biegłych zakresu badań
dokumentów w sądach okręgowych w Częstochowie, Gliwicach i Katowicach — analiza praktyki”, [in:] Dokument i jego badania, ed. R. Cieśla, Uniwersytet Wrocławski, Wro-cław 2014, pp. 211–214.
tices there are handwriting court experts in the hundreds. The list of only one regional court (in Częstochowa) may include above fifty experts in handwriting examination. People choose the specialty because of law ex-penditures. Prosecutors and judges often are urged to choose the cheapest experts and the fastest one. There is not a national register of expert’s opinion. There are not universally used proficiency tests (such tests are carried out only in police forces laboratory). There are not a national quality management system to ensure adequate quality of expert’s opin-ion. All the factors result in an organizational mess. It does not depend on politically motivated decisions. Unfortunately, subsequent ministers treat the issues as without significance for results of an opinion poll.
The legal system and accepted rules do not allow experts to learn from their own mistakes. Moreover, the legislator introduces rules that support persisting in errors (for instance: during a confrontation of the expert’s witness). According to the Polish Penal Code (art. 233 § 4a) it is possible to punish expert witness for an unintentional falsified opinion. Therefore experts may be sentenced for making mistakes (as the result of negligence or the result of lack of knowledge or skills). It does not create favorable conditions for owning up to mistakes. That way the legislators wanted ineffectually to upgrade the quality. As a matter of fact the ex-pression “unintentional falsifying” is an oxymoron. Most Polish forensic scientists demand a change of the present situation19.
Scientific background
Apart from the mentioned lack of research on the handwriting meth-od accuracy there are a lot of centers which deal with handwriting exam-ination scientifically. It includes: forensic departments of the universities in Katowice, Poznań, Warsaw, Wrocław, the psychological department in Lublin, the Central Forensic Laboratory of the Police Headquarters in Warsaw and the Institute of Forensic Research in Cracow. There is no way to list hundreds Polish research on handwriting in the present text. As an example, the research concern:
— measurable handwriting characteristics20,
— influence of particular somatic disorders on handwriting21,
— influence of particular mental disorders on handwriting22,
— influence of alcohol on handwriting23,
— methodological aspects of handwriting examination24,
— connections between personality features and handwriting char-acteristics25,
— items of information that may be derived from signatures26,
— a frequency signatures’ characteristics27,
— new techniques of graphical and comparative analysis that allow handwriting experts to analyze new characteristics28,
— the interdisciplinary nature of the modern forensic handwriting analysis29.
The very important thing is an exchange of experts’ experiences. In Poland it is possible to do it mainly owing to the fact, that Forensic De-partments of University in Wrocław for many years organized Wrocław
20 A. Koziczak, Metody pomiarowe w badaniach pismoznawczych, Instytut
Eksper-tyz Sądowych, Kraków 1997.
21 M. Całkiewicz, Kryminalistyczne badania patologicznego pisma ręcznego,
Aka-demia im. Leona Kuźmińskiego w Warszawie, Warszawa 2009; S. Skubisz, Dowód z eks-pertyzy pisma patologicznego, Wolters Kluwer, Kraków 2004; T. Widła, “Z problematyki patologii pisma”, [in:] Kryminalistyka i nauki penalne wobec przestępczości, ed. H. Ko-łecki, Wydawnictwo Poznańskie, Poznań 2008, pp. 139–172.
22 A. Buczek, M. Leśniak, “Z badań nad pismem schizofreników w okresie
remi-sji”, Postępy Psychiatrii i Neurologii 2000, 9, suplement 1.
23 J. Pobocha, M. Legień, “Zmiany poalkoholowe w piśmie ręcznym”, Problemy
Kryminalistyki, 1981, pp. 151–152.
24 E. Gruza, “Błędy w opiniach biegłych”, Problemy Współczesnej Kryminalistyki
2005, IX; T. Tomaszewski, “Czynniki uwzględniane w badaniach autentyczności podpi-sów”, Człowiek i Dokumenty 2010, 16.
25 B. Gawda, Pismo a osobowość człowieka, Uniwersytet Marii
Curie-Skłodow-skiej, Lublin 2000.
26 A. Feluś, Podpisy. Studium z pismoznawstwa kryminalistycznego, Uniwersytet
Śląski, Katowice 1987.
27 S. Matuszewski, “Natural variation in length of signature components”, Problem
of Forensic Science, 2011, LXXXVII.
28 M. Goc, Współczesny model…
29 T. Widła, M. Leśniak, “Interdyscyplinarność współczesnej ekspertyzy
Symposium on Questioned Document Examination. It takes place every two years. At present time the symposium is an opportunity to meet hand-writing experts from all over the world.
Conclusions
As it has already been mentioned at the beginning of the following text, in Poland we need a public discussion concerning some important areas of handwriting science. The first area is connected with the range and quality of the handwriting science study — including personal scientists’ responsibility for the methodological accuracy of their research (mainly about an adequate motivation of the results generalization on the whole population). Second area is connected with subject matters responsible for establishing methodological accuracy guidelines concerning procedures of such handwriting science study. How do those guidelines provide for the results of the latest empiric study? Are study methods precisely described and how the quality assurance looks while using them? The third part of the discussion is connected with the experts’ certification, so with the way of gaining knowledge and abilities by the expert from particular handwriting science area, and also a formal confirmation of having such knowledge and abilities. There is, however, a concern that if lawyers together with handwriting experts will not react quickly enough, wisely and decisively, in short perspective the accuracy of handwriting science establishment will fall to the level of the accuracy of an inadequately conducted revelation, and the statements about the scientific basics of the methods, used by the handwriting experts, will not be in fact justified.
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Summary
The present text is about situation of handwriting examinations currently in Poland. The scientific condition of handwriting examinations and the position taken in practice were presented. In context of statistical date this kind of expert’s opinion may be very sig-nificant for judicial proceedings. Meanwhile, the court decision-makers are not appropri-ately trained for making an assessment of experts’ opinions. Qualifications of handwriting experts are often poor. The dispute about scientific character of comparative examinations is continued. The system of controlling of expert’s opinions quality is not introduced. At the same time Polish scientists do a lot of interesting research on different issues concerning handwriting. Inter alia the researchers deal with: measuring of handwriting characteristics, influences somatic or mental disorders on handwriting, new techniques of graphical and comparative analysis, frequency signatures’ characteristics.
Keywords: handwriting examination, an expert’s opinion, handwriting character-istics, comparative examination, forensic researches in Poland, an expert’s conclusion, quality of forensic examination, criteria of being a scientific method.
